Loading...
HomeMy WebLinkAboutRES 08-318 RESOLUTION NO. 08-318 BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF BEAUMONT: THAT the City Manager be and he is hereby authorized to execute Industrial District Contracts with DuPont Performance Elastomers and E.I. DuPont DeNemours and Company, Inc. The contracts are substantially in the forms attached hereto as Exhibits "A" and "B" and made a part hereof for all purposes. PASSED BY THE CITY COUNCIL of the City of Beaumont this the 25th day of November, 2008. / rt1 v 1 s 0, - Mayor Becky Ames - e U, �/ i THE STATE OF TEXAS § COUNTY OF JEFFERSON § AGREEMENT This Agreement is made under the authority of Section 42.044 of the Texas Local Government Code. The parties to the Agreement are The City of Beaumont, a municipal corporation and a home-rule city located in Jefferson County, Texas, hereinafter called "CITY," and DuPont Performance Elastomers, L.L.C., its parent, subsidiaries and affiliates, hereinafter called "COMPANY." PREAMBLE WHEREAS, Company leases land and improvements which are a part of the manufacturing, industrial, and refining facilities of said Company. The City has established an industrial district comprising a certain part of the extra-territorial jurisdiction of the City, such industrial district being known as the City of Beaumont Industrial District. WHEREAS, the Company recognizes the benefits of this Agreement and an obligation to contribute to the revenue needs of said City in an amount commensurate with the burdens placed upon the City and benefits derived by the Company by reason of being located immediately adjacent to said City. WHEREAS, the Company and the City desire to base the industrial district payment on assessed value to ensure equity among the companies. In view of the above and foregoing reasons, and in consideration of the mutual agreements herein contained, Company and City hereby agree as follows: SAAGENDAWGENDA ITEM MEMOSOupont Peformance Elastomers 2009.doc 1 EXHIBIT 'A' ARTICLE I COMPANY'S OBLIGATION Annual Payment on Company's Property 1. Commencing with the calendar year 2009 and each calendar year thereafter for the duration of this Contract, the Company will pay the City a certain sum which will be computed on the assessed value of the Company's facilities and property, real, personal, and mixed located on Company's land covered by this contract. (Herein "the properties") 2. By the term "Assessed Value" is meant the 100% valuation of the Company's, properties, as determined by the Jefferson County Appraisal District for the previous tax year. 3. The term "assumed City taxes due" shall be calculated by the following formula: Assumed City Taxes Due: Assessed Value/ 100 X Current City Tax Rate=Assumed City Tax Due 4. Payment Procedures The procedures for determining and making such payments shall be as follows: (a) The payment for 2009 shall be due and payable on or before February 1, 2009, and calculated as follows: SAAGENDA\AGENDA ITEM MEMOSOupont Peformance Elastomers 2009.doc 2 Assumed City Taxes Due: Assessed Value/ 100 X Current City Tax Rate= Assumed City Taxes Due Year 1 = 80% of Assumed City Taxes Due Each October thereafter, the Chief Financial Officer shall obtain the most recent assessed values as set by the Jefferson County Appraisal District for the Company's properties, real, personal and mixed, having taxable situs within the areas described in this agreement; for example, in October, 2008, the 2008 assessed values shall be used for the February 1, 2009 payment. If the assessed values for the period required are in question and/or under litigation with the Jefferson County Appraisal District, payment shall be computed on the most recent certified values from the Jefferson County Appraisal District. The Company shall notify the City following resolution of the appraised value question and an adjustment for the payment, without interest, will be made within thirty (30) days following such resolution. (b) After the assessed value of the Company's properties has been determined, the payments due hereunder shall be calculated in accordance with the following schedule: The 2010 and 2011 payments shall be 80% of assumed City taxes due. The 2012 - 2015 payments shall be 75% of assumed City taxes. (c) City hereby agrees to bill Company for its payments due hereunder on or before January 1 each year. Company shall pay to City the amount billed on or before February 1 each SAAGENDA\AGENDA ITEM MEMOSOupont Peformance Elastomers 2009.doc 3 year. Upon receiving the final payment, the Finance Officer shall issue an official receipt of said City acknowledging full, timely, final and complete payment due by said Company to City for the property involved in this Agreement for the year in which such payment is made. If payment is not made on or before any due date, the same penalties, interest, attorneys' fees and costs of collection shall be recoverable by the City as would be collectible in the case of delinquent ad valorem taxes. Further, if payment is not received within 30 days of the due date, all payments which otherwise would have been paid to the City had Company been in the City limits of City will be recaptured for the year in which the payment was not timely made and paid to the City within 30 days of any such event after notice by the City as set out herein that the payment is delinquent. ARTICLE I1 PROPERTY COVERED BY AGREEMENT This instrument will reflect the intention of the parties hereto that this instrument shall govern and affect the properties of Company (facilities, real, personal, and mixed) located on Company's real property as shown on the records of the Jefferson County Appraisal District, which are within the extra-territorial jurisdiction of the City of Beaumont. S:WGENDA\AGENDA ITEM MEMOS\Dupont Peformance Elastomers 2009.doc 4 ARTICLE III SALE BY COMPANY Company shall notify City of any sale of any or all of Company's facilities to any person or entity. It is the intent of the parties that no sale of any of Company's facilities will affect the amount to be paid to the City as provided under this Agreement. Accordingly and as to payments due under this contract no such sale shall reduce the amount due the City under this contract until the purchaser of such facility has entered into a contract in lieu of taxes with the City that provides for a continuation of like payments to the City. ARTICLE IV CITY'S OBLIGATIONS 1. City agrees that it will not annex, attempt to annex or in any way cause or permit to be annexed any portion of lands or facilities or properties of said Company covered by this Agreement for the period of the agreement except as follows: (a) If the City determines that annexation of all or any part of the properties covered by this Agreement belonging to said Company is reasonably necessary to promote and protect the general health, safety and welfare of persons residing within or adjacent to the City, the City will notify Company in accordance with State law of the proposed annexation. In the event of such annexation, Company will not be required to make further payment under this Agreement for any calendar year commencing after such annexation with respect to the property so annexed, but shall nevertheless be obligated to make full payment for the year during which such annexation become effective if the annexation becomes effective after January 1 st of said year. SAAGENDAWGENDA ITEM MEMOS\Dupont Peformance Elastomers 2009.doc 5 (b) In the event any municipality other than the City attempts to annex separately or in the event the creation of any new municipality shall be attempted so as to include within its limits any land which is the subject matter of this Agreement, City shall seek immediate legal relief against any such attempted annexation or incorporation and shall take such other legal steps as may be necessary or advisable under the circumstances with all cost of such action being borne by the City. 2. The City further agrees that during the term of this Agreement, there shall not be extended or enforced as to any land and property of Company within said City of Beaumont Industrial District, any rules, regulations, or any other actions: (a) seeking in any way to control the platting and subdivisions of land, (b) prescribing any buildings, electrical, plumbing or inspection standards or equipment, or (c) attempting to regulate or control in any way the conduct of Company's activities, facilities or personnel thereof. 3. It is understood and agreed that during the term of this agreement or any renewals thereof, the City shall not be required to furnish any municipal services to Company's property located within the City of Beaumont Industrial District; provided, however, City agrees to furnish fire protection to Company should such protection be requested by Company in the event an unusual emergency situation occurs. The City will also provide police protection if called upon by the Jefferson County Sheriff's Department for assistance. SAAGENDA\AGENDA ITEM MEMOSOupont Peformance Elastomers 2009.doc 6 ARTICLE V TERMINATION OF BREACH It is agreed by the parties to this Agreement that only full, complete and faithful performance of the terms hereof shall satisfy the rights and obligations assumed by the parties and that, therefore, in addition to any action at law for damages which either party may have, Company shall be entitled to enjoin the enactment or enforcement of any ordinance or charter amendment in violation of, or in conflict with, the terms of this Agreement and shall be entitled to obtain such other equitable relief, including specific performance of the Agreement, as is necessary to enforce its rights. It is further agreed that should this Agreement be breached by Company, the City shall be entitled, in addition to any action at law for damages, to obtain specific performance of this Agreement and such other equitable relief necessary to enforce its rights. ARTICLE VI AFFILIATES The benefits accruing to Company under this Agreement shall also extend to Company's "affiliates" and to any properties owned or acquired by said affiliates within the area owned by Company, and where reference is made herein to land, property and improvements owned by Company, that shall also include land, property and improvements owned by its affiliates. The word "affiliates" as used herein shall mean all companies with respect to which Company directly or indirectly, through one or more intermediaries at the time in question, owns or has the power to exercise the control over fifty percent (50%) or more of the stock having the right to vote for the election of directors. SAAGENDAWGENDA ITEM MEMOS\Dupont Peformance Elastomers 2009.doc 7 ARTICLE VII TERM OF AGREEMENT The term of this Agreement shall be for seven(7)years, commencing January 1, 2009, and ending on December 31, 2015. ARTICLE VIII NOTICES Any notice provided for in this Contract, or which may otherwise be required by law shall be given in writing to the parties hereto by Certified Mail addressed as follows: TO CITY TO COMPANY City Manager DuPont Performance Elastomers, L.L.C. City of Beaumont Property Tax, Suite 135 801 Main 140 Cypress Station Drive P. O. Box 3827 Houston, Texas 77090 Beaumont, Texas 77704 ARTICLE IX CONTINUATION If this Agreement shall be held invalid by any court of competent jurisdiction, such holding shall not affect the right of City to any payment made or accruing to City hereunder prior to such adjudication, and this provision is intended to be an independent and separable provision not to be affected by such adjudication. SAAGENDA\AGENDA ITEM MEMOS\Dupont Peformance Elastomers 2009.doc 8 IN WITNESS THEREOF, this Agreement, consisting of 9 pages, is executed in duplicate counterparts as of this day of , 2008. CITY OF BEAUMONT, TEXAS By: Kyle Hayes City Manager ATTEST: Tina Broussard City Clerk DUPONT PERFORMANCE ELASTOMERS, L.L.C. By: ATTEST: S:\AGENDA\AGENDA ITEM MEMOSOupont Peformance Elastomers 2009.doc 9 THE STATE OF TEXAS § COUNTY OF JEFFERSON § AGREEMENT This Agreement is made under the authority of Section 42.044 of the Texas Local Government Code. The parties to the Agreement are The City of Beaumont, a municipal corporation and a home-rule city located in Jefferson County, Texas, hereinafter called "CITY," and E. 1. duPont deNemours and Company, Inc., its parent, subsidiaries and affiliates, hereinafter called "COMPANY." PREAMBLE WHEREAS, Company owns land and improvements which are a part of the manufacturing, industrial, and refining facilities of said Company. The City has established an industrial district comprising a certain part of the extra-territorial jurisdiction of the City, such industrial district being known as the City of Beaumont Industrial District. WHEREAS, the Company recognizes the benefits of this Agreement and an obligation to contribute to the revenue needs of said City in an amount commensurate with the burdens placed upon the City and benefits derived by the Company by reason of being located immediately adjacent to said City. WHEREAS, the Company and the City desire to base the industrial district payment on assessed value to ensure equity among the companies. In view of the above and foregoing reasons, and in consideration of the mutual agreements herein contained, Company and City hereby agree as follows: S:\AGENDAWGENDA ITEM MEMOS\Dupont 2009.doc 1 EXHIBIT "B" ARTICLE I COMPANY'S OBLIGATION Annual Payment on Company's Property 1. Commencing with the calendar year 2009 and each calendar year thereafter for the duration of this Contract, the Company will pay the City a certain sum which will be computed on the assessed value of the Company's facilities and property, real, personal, and mixed located on Company's land covered by this contract. (Herein "the properties") 2. By the term "Assessed Value" is meant the 100% valuation of the Company's, properties, as determined by the Jefferson County Appraisal District for the previous tax year. 3. The term "assumed City taxes due" shall be calculated by the following formula: Assumed City Taxes Due: Assessed Value/ 100 X Current City Tax Rate=Assumed City Tax Due 4. Payment Procedures The procedures for determining and making such payments shall be as follows: (a) The payment for 2009 shall be due and payable on or before February 1, 2009, and calculated as follows: Assumed City Taxes Due: Assessed Value/ 100 X Current City Tax Rate = Assumed City Taxes Due Year 1 = 80% of Assumed City Taxes Due SAAGENDA\AGENDA ITEM MEMOSOupont 2009.doc 2 Each October thereafter, the Chief Financial Officer shall obtain the most recent assessed values as set by the Jefferson County Appraisal District for the Company's properties, real, personal and mixed, having taxable situs within the areas described in this agreement; for example, in October, 2008, the 2008 assessed values shall be used for the February 1, 2009 payment. If the assessed values for the period required are in question and/or under litigation with the Jefferson County Appraisal District, payment shall be computed on the most recent certified values from the Jefferson County Appraisal District. The Company shall notify the City following resolution of the appraised value question and an adjustment for the payment, without interest, will be made within thirty (30) days following such resolution. (b) After the assessed value of the Company's properties has been determined, the payments due hereunder shall be calculated in accordance with the following schedule: The 2010 and 2011 payments shall be 80% of assumed City taxes due, except such payment shall not exceed or be less than the previous year's payment by more than 10%. The 2012 - 2015 payments shall be 75% of assumed City taxes, except the payment shall not exceed or be less than the previous year's payment by more than 7%. Should the assessed value of the Company's properties decrease more than 20% due to shutdown of an operating unit, compared to the previous year, then payments shall be calculated as follows: 1. The payment for the year after the 20%plus reduction shall not be affected and shall be calculated as set out in the subsection. SAAGENDA\AGENDA ITEM MEMOSOupont 2009.doc 3 2. If the assessed value for the next year does not increase, the payment shall be calculated using the reduced value notwithstanding the 10% or 7% upper and lower limits set out above. 3. If the assessed value for the next year increases above the 20% limit, the payment shall be calculated as set out in"(b)" above. (c) City hereby agrees to bill Company for its payments due hereunder on or before January 1 each year. Company shall pay to City the amount billed on or before February 1 each year. Upon receiving the final payment, the Finance Officer shall issue an official receipt of said City acknowledging full, timely, final and complete payment due by said Company to City for the property involved in this Agreement for the year in which such payment is made. If payment is not made on or before any due date, the same penalties, interest, attorneys' fees and costs of collection shall be recoverable by the City as would be collectible in the case of delinquent ad valorem taxes. Further, if payment is not received within 30 days of the due date, all payments which otherwise would have been paid to the City had Company been in the City limits of City will be recaptured for the year in which the payment was not timely made and paid to the City within 30 days of any such event after notice by the City as set out herein that the payment is delinquent. SAAGENDAIAGENDA ITEM MEMOS\Dupont 2009.doc 4 ARTICLE II PROPERTY COVERED BY AGREEMENT This instrument will reflect the intention of the parties hereto that this instrument shall govern and affect the properties of Company (facilities, real, personal, and mixed) located on Company's real property as shown on the records of the Jefferson County Appraisal District, which are within the extra-territorial jurisdiction of the City of Beaumont. ARTICLE III SALE BY COMPANY Company shall notify City of any sale of any or all of Company's facilities to any person or entity. It is the intent of the parties that no sale of any of Company's facilities will affect the amount to be paid to the City as provided under this Agreement. Accordingly and as to payments due under this contract no such sale shall reduce the amount due the City under this contract until the purchaser of such facility has entered into a contract in lieu of taxes with the City that provides for a continuation of like payments to the City. ARTICLE IV FACILITIES ON COMPANY PROPERTY OWNED BY OTHERS City and Company recognize that Company has transferred ownership of certain facilities and propertied to other entities. Specifically, Company has transferred ownership of facilities to Beaumont Methanol, DuPont Performance Elastomers, LLC, and Lucite International, Inc., (herein the "Entities") and that the value of such facilities would not be included within the definition of Company's "assessed value" as defined herein Article I, II. City has entered into contracts in lieu of taxes with Entities; however, should the Entities S:\AGENDA\AGENDA ITEM MEMOSOupont 2009.doc 5 fail or refuse to make required payments under such contracts City will notify Company of default. Company will request of the City annexation of so much of the properties of Company as are necessary to annex facilities and properties belonging to the Entities. Company agrees that it will not oppose such annexation and Company further realizes that some portion of the properties of Company may have to be included within the annexation effort by the City. Annexation of the Company's properties shall be limited to include only that which is necessary to satisfy the state's requirement for a strip allowing access to the Entities. Such annexation by City will not affect the amount of the payment due by Company to City in the year the annexation takes place. ARTICLE V CITY'S OBLIGATIONS 1. City agrees that it will not annex, attempt to annex or in any way cause or permit to be annexed any portion of lands or facilities or properties of said Company covered by this Agreement for the period of the agreement except as follows: (a) If the City determines that annexation of all or any part of the properties covered by this Agreement belonging to said Company is reasonably necessary to promote and protect the general health, safety and welfare of persons residing within or adjacent to the City, the City will notify Company in accordance with State law of the proposed annexation. In the event of such annexation, Company will not be required to make further payment under this Agreement for any calendar year commencing after such annexation with respect to the property so annexed, but shall nevertheless be obligated to make full payment for the year during which such annexation becomes effective if the annexation becomes effective after January 1 st of said year. SAAGENDA\AGENDA ITEM MEMOS\Dupont 2009.doc 6 (b) In the event any municipality other than the City attempts to annex separately or in the event the creation of any new municipality shall be attempted so as to include within its limits any land which is the subject matter of this Agreement, City shall seek immediate legal relief against any such attempted annexation or incorporation and shall take such other legal steps as may be necessary or advisable under the circumstances with all cost of such action being borne by the City. 2. The City further agrees that during the term of this Agreement, there shall not be extended or enforced as to any land and property of Company within said City of Beaumont Industrial District, any rules, regulations, or any other actions: (a) seeking in any way to control the platting and subdivisions of land, (b) prescribing any buildings, electrical, plumbing or inspection standards or equipment, or (c) attempting to regulate or control in any way the conduct of Company's activities, facilities or personnel thereof. 3. It is understood and agreed that during the term of this agreement or any renewals thereof, the City shall not be required to furnish any municipal services to Company's property located within the City of Beaumont Industrial District; provided, however, City agrees to furnish fire protection to Company should such protection be requested by Company in the event an unusual emergency situation occurs. The City will also provide police protection if called upon by the Jefferson County Sheriff s Department for assistance. SAAGENDA�AGENDA ITEM MEMOSOupont 2009.doc 7 ARTICLE VI TERMINATION OF BREACH It is agreed by the parties to this Agreement that only full, complete and faithful performance of the terms hereof shall satisfy the rights and obligations assumed by the parties and that, therefore, in addition to any action at law for damages which either party may have, Company shall be entitled to enjoin the enactment or enforcement of any ordinance or charter amendment in violation of, or in conflict with, the terms of this Agreement and shall be entitled to obtain such other equitable relief, including specific performance of the Agreement, as is necessary to enforce its rights. It is further agreed that should this Agreement be breached by Company, the City shall be entitled, in addition to any action at law for damages, to obtain specific performance of this Agreement and such other equitable relief necessary to enforce its rights. ARTICLE VII AFFILIATES The benefits accruing to Company under this Agreement shall also extend to Company's "affiliates" and to any properties owned or acquired by said affiliates within the area owned by Company, and where reference is made herein to land, property and improvements owned by Company, that shall also include land, property and improvements owned by its affiliates. The word "affiliates" as used herein shall mean all companies with respect to which Company directly or indirectly, through one or more intermediaries at the time in question, owns or has the power to exercise the control over fifty percent (50%) or more of the stock having the right to vote for the election of directors. S:\AGENDA\AGENDA ITEM MEMOS\Dupont 2009.doc 8 ARTICLE VIII TERM OF AGREEMENT The term of this Agreement shall be for seven(7) years, commencing January 1, 2009, and ending on December 31, 2015. ARTICLE IX NOTICES Any notice provided for in this Contract, or which may otherwise be required by law shall be given in writing to the parties hereto by Certified Mail addressed as follows: TO CITY TO COMPANY City Manager E. I. duPont deNemours and Company, Inc. City of Beaumont Property Tax, Suite 135 801 Main 140 Cypress Station Drive P. O. Box 3827 Houston, Texas 77090 Beaumont, Texas 77704 ARTICLE X CONTINUATION If this Agreement shall be held invalid by any court of competent jurisdiction, such holding shall not affect the right of City to any payment made or accruing to City hereunder prior to such adjudication, and this provision is intended to be an independent and separable provision not to be affected by such adjudication. SAAGENDA\AGENDA ITEM MEMOSOupont 2009.doc 9 ARTICLE XI. EXCLUSIONS 1. In determining the assessed value of the Company facilities there is to be excluded therefrom the value of any new plant facilities, replacement, modernization or additions that significantly increase the assessed value of Company's properties. "Significantly increase" shall be defined as an increase in assessed value of fifty percent (50%) or more above the prior year's assessed value of Company's properties excluding land. Any number of projects (whether new construction, replacement, modernization or additions)may be added together to determine whether they aggregate a significant increase in the assessed value of Company's properties so long as construction of each project begins within a single 12-month period. This exclusion will be restricted to include only a new and distinct processing facility, replacement, modernization or additions to present facilities, and shall not include the maintenance, reconditioning, upgrading, refurbishing or repairing of existing process facilities. The intent of this exclusion is to encourage major new capital investment within the extraterritorial environs of the City. Determination of qualifications for this exclusion shall be made by the City Manager upon petition by Company and presentation of all pertinent data. Company shall notify the City Manager of its intention to claim an exclusion at least one hundred twenty (120) days prior to the end of the calendar year prior to the year in which the exclusion will take place. Subject to the upper and lower limitations on payments set out in Article 14 (b)hereof Company agrees that to whatever extent that the non-excluded plant's accessed value on realty improvements is reduced for whatever reason(excepting from fire, explosion, or other casualty or accident or from any natural disaster), an equivalent amount SAAGENDAIAGENDA ITEM MEMOSOupont 2009.doc 10 (dollar for dollar) of assessed value on realty improvements of the excluded facilities shall be deemed for the purposes of this agreement to lose its exclusion for the current pure g e year and Y accordingly shall be deemed to be included in the non-excluded plant's total assessed value and payments shall be calculated and made by Company thereon to City for the subsequent year, however, in no event shall the offset exceed the fair market value of the realty improvements that would otherwise be excluded. Company agrees to provide the City Manager with all the information necessary for the City Manager to determine whether the expenditure by the Company is qualified for exclusion. The exclusion shall commence the first calendar year following the completion of construction and it shall be in the amount of 100% for the first, second and third years, 75% of value for the fourth and fifth years, and 50% of value for the sixth and seventh years. 2. In determining the assessed value of the Company's facilities, there is also to be excluded therefrom the value of incomplete construction also known as construction in progress. This exclusion applies to new and distinct plant facilities or modernization of or additions to present facilities as specified in item(1) above, regardless of whether such will significantly increase the assessed values of Companies properties. 3. If a question arises relating to the exclusion amount, payment shall be made based on the last Certified assessed value, without the questioned exclusion. An adjustment to the payment, if any, shall be made following resolution of the question. The determination concerning whether a capital expenditure by Company is qualified for exclusion hereunder shall be made by the City Manager. Any appeal of the decision of the City Manager shall be made in SAAGENDA\AGENDA ITEM MEMOS\Dupont 2009.doc 11 writing to the City Council within fifteen (15) days of the decision of the Manager. The decision of the City Council shall be final. If any part or all of this Agreement shall be held invalid by any court of competent jurisdiction, such holding shall not affect the right of City to any payment made or accruing to City hereunder prior to such adjudication, and this provision is intended to be an independent and separable provision not to be affected by such adjudication. IN WITNESS THEREOF, this Agreement, consisting of 12 pages, is executed in duplicate counterparts as of this day of , 2008. CITY OF BEAUMONT, TEXAS By: Kyle Hayes City Manager ATTEST: Tina Broussard City Clerk E. I. DUPONT DE NEMOURS AND COMPANY, INC. By: ATTEST: S:WGENDA\AGENDA ITEM MEMOS\Dupont 2009.doc 12 THE STATE OF TEXAS § COUNTY OF JEFFERSON § AGREEMENT This Agreement is made under the authority of Section 42.044 of the Texas Local Government Code. The parties to the Agreement are The City of Beaumont, a municipal corporation and a home-rule city located in Jefferson County, Texas, hereinafter called "CITY," and E. I. duPont deNemours and Company, Inc., its parent, subsidiaries and affiliates, hereinafter called ,COMPANY. PREAMBLE WHEREAS, Company owns land and improvements which are a part of the manufacturing, industrial, and refining facilities of said Company. The City has established an industrial district comprising a certain part of the extra-territorial jurisdiction of the City, such industrial district being known as the City of Beaumont Industrial District. WHEREAS, the Company recognizes the benefits of this Agreement and an obligation to contribute to the revenue needs of said City in an amount commensurate with the burdens placed upon the City and benefits derived by the Company by reason of being located immediately adjacent to said City. WHEREAS, the Company and the City desire to base the industrial district payment on assessed value to ensure equity among the companies. In view of the above and foregoing reasons, and in consideration of the mutual agreements herein contained, Company and City hereby agree as follows: Q'Industrial Crnrtracts\20090upart 2009-Final.doc 1 ARTICLE I COMPANY'S OBLIGATION Annual Payment on Company's Property 1. Commencing with the calendar year 2009 and each calendar year thereafter for the duration of this Contract, the Company will pay the City a certain sum which will be computed on the assessed value of the Company's facilities and property, real, personal, and mixed located on Company's land covered by this contract. (Herein"the properties") 2. By the term "Assessed Value" is meant the 100% valuation of the Company's, properties, as determined by the Jefferson County Appraisal District for the previous tax year. 3. The term "assumed City taxes due" shall be calculated by the following formula: Assumed City Taxes Due: Assessed Value/ 100 X Current City Tax Rate=Assumed City Tax Due 4. Payment Procedures The procedures for determining and making such payments shall be as follows: (a) The payment for 2009 shall be due and payable on or before February 1, 2009, and calculated as follows: Assumed City Taxes Due: Assessed Value/ 100 X Current City Tax Rate = Assumed City Taxes Due Year 1 = 80%of Assumed City Taxes Due SAAGENDA�AGENDA ITEM MEMOSOupont 2009.doc 2 Each October thereafter, the Chief Financial Officer shall obtain the most recent assessed values as set by the Jefferson County Appraisal District for the Company's properties, real, personal and mixed, having taxable situs within the areas described in this agreement; for example, in October, 2008, the 2008 assessed values shall be used for the February 1, 2009 payment. If the assessed values for the period required are in question and/or under litigation with the Jefferson County Appraisal District, payment shall be computed on the most recent certified values from the Jefferson County Appraisal District. The Company shall notify the City following resolution of the appraised value question and an adjustment for the payment, without interest,will be made within thirty(30)days following such resolution. (b) After the assessed value of the Company's properties has been determined, the payments due hereunder shall be calculated in accordance with the following schedule: The 2010 and 2011 payments shall be 80% of assumed City taxes due, except such payment shall not exceed or be less than the previous year's payment by more than 10%. The 2012 - 2015 payments shall be 75% of assumed City taxes, except the payment shall not exceed or be less than the previous year's payment by more than 7%. Should the assessed value of the Company's properties decrease more than 20% due to shutdown of an operating unit, compared to the previous year, then payments shall be calculated as follows: 1. The payment for the year after the 20%plus reduction shall not be affected and shall be calculated as set out in the subsection. SAAGENDAWGENDA ITEM MEMOS\Dupont 2009.doc 3 2. If the assessed value for the next year does not increase, the payment shall be calculated using the reduced value notwithstanding the 10% or 7%upper and lower limits set out above. 3. If the assessed value for the next year increases above the 20% limit, the payment shall be calculated as set out in"(b)"above. (c) City hereby agrees to bill Company for its payments due hereunder on or before January 1 each year. Company shall pay to City the amount billed on or before February 1 each year. Upon receiving the final payment,the Finance Officer shall issue an official receipt of said City acknowledging full, timely, final and complete payment due by said Company to City for the property involved in this Agreement for the year in which such payment is made. If payment is not made on or before any due date, the same penalties, interest, attorneys' fees and costs of collection shall be recoverable by the City as would be collectible in the case of delinquent ad valorem taxes. Further, if payment is not received within 30 days of the due date, all payments which otherwise would have been paid to the City had Company been in the City limits of City will be recaptured for the year in which the payment was not timely made and paid to the City within 30 days of any such event after notice by the City as set out herein that the payment is delinquent. SAAGENDA\AGENDA ITEM MEMOS\Dupont 2009.doc 4 ARTICLE II PROPERTY COVERED BY AGREEMENT This instrument will reflect the intention of the parties hereto that this instrument shall govern and affect the properties of Company (facilities, real, personal, and mixed) located on Company's real property as shown on the records of the Jefferson County Appraisal District, which are within the extra-territorial jurisdiction of the City of Beaumont. ARTICLE III SALE BY COMPANY Company shall notify City of any sale of any or all of Company's facilities to any person or entity. It is the intent of the parties that no sale of any of Company's facilities will affect the amount to be paid to the City as provided under this Agreement. Accordingly and as to payments due under this contract no such sale shall reduce the amount due the City under this contract until the purchaser of such facility has entered into a contract in lieu of taxes with the City that provides for a continuation of like payments to the City. ARTICLE IV FACILITIES ON COMPANY PROPERTY OWNED BY OTHERS City and Company recognize that Company has transferred ownership of certain facilities and propertied to other entities. Specifically, Company has transferred ownership of facilities to Beaumont Methanol, DuPont Performance Elastomers, LLC, and Lucite International, Inc., (herein the "Entities") and that the value of such facilities would not be included within the definition of Company's "assessed value" as defined herein Article I, II. City has entered into contracts in lieu of taxes with Entities; however, should the Entities S:IAGENDA\AGENDA ITEM MEMOSOupont 2009.doc 5 fail or refuse to make required payments under such contracts City will notify Company of default. Company will request of the City annexation of so much of the properties of Company as are necessary to annex facilities and properties belonging to the Entities. Company agrees that it will not oppose such annexation and Company further realizes that some portion of the properties of Company may have to be included within the annexation effort by the City. Annexation of the Company's properties shall be limited to include only that which is necessary to satisfy the state's requirement for a strip allowing access to the Entities. Such annexation by City will not affect the amount of the payment due by Company to City in the year the annexation takes place. ARTICLE V CITY'S OBLIGATIONS 1. City agrees that it will not annex, attempt to annex or in any way cause or permit to be annexed any portion of lands or facilities or properties of said Company covered by this Agreement for the period of the agreement except as follows: (a) If the City determines that annexation of all or any part of the properties covered by this Agreement belonging to said Company is reasonably necessary to promote and protect the general health, safety and welfare of persons residing within or adjacent to the City, the City will notify Company in accordance with State law of the proposed annexation. In the event of such annexation, Company will not be required to make further payment under this Agreement for any calendar year commencing after such annexation with respect to the property so annexed, but shall nevertheless be obligated to make full payment for the year during which such annexation becomes effective if the annexation becomes effective after January 1 st of said year. SAAGENDAWGENDA ITEM MEMOS\Dupont 2009.doc 6 (b) In the event any municipality other than the City attempts to annex separately or in the event the creation of any new municipality shall be attempted so as to include within its limits any land which is the subject matter of this Agreement, City shall seek immediate legal relief against any such attempted annexation or incorporation and shall take such other legal steps as may be necessary or advisable under the circumstances with all cost of such action being borne by the City. 2. The City further agrees that during the term of this Agreement, there shall not be extended or enforced as to any land and property of Company within said City of Beaumont Industrial District, any rules, regulations, or any other actions: (a) seeking in any way to control the platting and subdivisions of land, (b) prescribing any buildings, electrical, plumbing or inspection standards or equipment, or (c) attempting to regulate or control in any way the conduct of Company's activities, facilities or personnel thereof. 3. It is understood and agreed that during the term of this agreement or any renewals thereof, the City shall not be required to furnish any municipal services to Company's property located within the City of Beaumont Industrial District; provided, however, City agrees to furnish fire protection to Company should such protection be requested by Company in the event an unusual emergency situation occurs. The City will also provide police protection if called upon by the Jefferson County Sheriff s Department for assistance. SAAGENDAIAGENDA ITEM MEMOSOupont 2009.doc 7 ARTICLE VI TERMINATION OF BREACH It is agreed by the parties to this Agreement that only full, complete and faithful performance of the terms hereof shall satisfy the rights and obligations assumed by the parties and that, therefore, in addition to any action at law for damages which either party may have, Company shall be entitled to enjoin the enactment or enforcement of any ordinance or charter amendment in violation of, or in conflict with, the terms of this Agreement and shall be entitled to obtain such other equitable relief, including specific performance of the Agreement, as is necessary to enforce its rights. It is further agreed that should this Agreement be breached by Company, the City shall be entitled, in addition to any action at law for damages, to obtain specific performance of this Agreement and such other equitable relief necessary to enforce its rights. ARTICLE VII AFFILIATES The benefits accruing to Company under this Agreement shall also extend to Company's "affiliates" and to any properties owned or acquired by said affiliates within the area owned by Company, and where reference is made herein to land, property and improvements owned by Company, that shall also include land, property and improvements owned by its affiliates. The word "affiliates" as used herein shall mean all companies with respect to which Company directly or indirectly, through one or more intermediaries at the time in question, owns or has the power to exercise the control over fifty percent (50%) or more of the stock having the right to vote for the election of directors. S:IAGENDAVAGENDA ITEM MEMOSOupont 2009.doe 8 ARTICLE VIII TERM OF AGREEMENT The term of this Agreement shall be for seven(7)years, commencing January 1, 2009, and ending on December 31, 2015. ARTICLE IX NOTICES Any notice provided for in this Contract, or which may otherwise be required by law shall be given in writing to the parties hereto by Certified Mail addressed as follows: TO CITY TO COMPANY City Manager E. I. duPont deNemours and Company, Inc. City of Beaumont Property Tax, Suite 135 801 Main 140 Cypress Station Drive P. O. Box 3827 Houston, Texas 77090 Beaumont, Texas 77704 ARTICLE X CONTINUATION If this Agreement shall be held invalid by any court of competent jurisdiction, such holding shall not affect the right of City to any payment made or accruing to City hereunder prior to such adjudication, and this provision is intended to be an independent and separable provision not to be affected by such adjudication. S:IAGENDA\AGENDA ITEM MEMOSOupont 2009.doc 9 ARTICLE XI. EXCLUSIONS 1. In determining the assessed value of the Company facilities there is to be excluded therefrom the value of any new plant facilities,replacement, modernization or additions that significantly increase the assessed value of Company's properties. "Significantly increase" shall be defined as an increase in assessed value of fifty percent(50%) or more above the prior year's assessed value of Company's properties excluding land. Any number of projects (whether new construction,replacement, modernization or additions)may be added together to determine whether they aggregate a significant increase in the assessed value of Company's properties so long as construction of each project begins within a single 12-month period. This exclusion will be restricted to include only a new and distinct processing facility,replacement, modernization or additions to present facilities, and shall not include the maintenance,reconditioning, upgrading,refurbishing or repairing of existing process facilities. The intent of this exclusion is to encourage major new capital investment within the extraterritorial environs of the City. Determination of qualifications for this exclusion shall be made by the City Manager upon petition by Company and presentation of all pertinent data. Company shall notify the City Manager of its intention to claim an exclusion at least one hundred twenty (120) days prior to the end of the calendar year prior to the year in which the exclusion will take place. Subject to the upper and lower limitations on payments set out in Article 14 (b)hereof Company agrees that to whatever extent that the non-excluded plant's accessed value on realty improvements is reduced for whatever reason(excepting from fire, explosion, or other casualty or accident or from any natural disaster), an equivalent amount SAAGENDA\AGENDA ITEM MEMOSOupont 2009.doc 10 i (dollar for dollar)of assessed value on realty improvements of the excluded facilities shall be deemed for the purposes of this agreement to lose its exclusion for the current year and accordingly shall be deemed to be included in the non-excluded plant's total assessed value and payments shall be calculated and made by Company thereon to City for the subsequent year, however, in no event shall the offset exceed the fair market value of the realty improvements that would otherwise be excluded. Company agrees to provide the City Manager with all the information necessary for the City Manager to determine whether the expenditure by the Company is qualified for exclusion. The exclusion shall commence the first calendar year following the completion of construction and it shall be in the amount of 100%for the first, second and third years, 75%of value for the fourth and fifth years, and 50%of value for the sixth and seventh years. 2. In determining the assessed value of the Company's facilities,there is also to be excluded therefrom the value of incomplete construction also known as construction in progress, This exclusion applies to new and distinct plant facilities or modernization of or additions to present facilities as specified in item(1) above, regardless of whether such will significantly increase the assessed values of Companies properties. 3. If a question arises relating to the exclusion amount,payment shall be made based on the last Certified assessed value, without the questioned exclusion. An adjustment to the payment, if any, shall be made following resolution of the question. The determination concerning whether a capital expenditure by Company is qualified for exclusion hereunder shall be made by the City Manager. Any appeal of the decision of the City Manager shall be made in SAAGENDA\AGENDA ITEM MEMOS\Dupont 2009.doc 11 writing to the City Council within fifteen(15) days of the decision of the Manager. The decision of the City Council shall be final. If any part or all of this Agreement shall be held invalid by any court of competent jurisdiction, such holding shall not affect the right of City to any payment made or accruing to City hereunder prior to such adjudication, and this provision is intended to be an independent and separable provision not to be affected by such adjudication. IN WITNESS THEREOF, this Agreement,consisting of 12 pages, is executed in 4 duplicate counterparts as of this S ' day of Ote e^A,- , 2008. CITY OF BEAUMONT, TEXAS By: Kyle Hayes City Manager ATTEST: Tina Broussard City Clerk E. 1. DUPONT D MOURS AND w 2 COMPANY, C. i f of By: ATTEST• SAAGENDAIAGENDA ITEM MEMOS\Dupont 2009.doc 12 THE STATE OF TEXAS § COUNTY OF JEFFERSON § AGREEMENT This Agreement is made under the authority of Section 42.044 of the Texas Local Government Code. The parties to the Agreement are The City of Beaumont, a municipal corporation and a home-rule city located in Jefferson County, Texas, hereinafter called "CITY," and Dupont Performance Elastomers, L.L.C., its parent, subsidiaries and affiliates, hereinafter called "COMPANY." PREAMBLE WHEREAS, Company leases land and improvements which are a part of the manufacturing, industrial, and refining facilities of said Company. The City has established an industrial district comprising a certain part of the extra-territorial jurisdiction of the City, such industrial district being known as the City of Beaumont Industrial District. WHEREAS, the Company recognizes the benefits of this Agreement and an obligation to contribute to the revenue needs of said City in an amount commensurate with the burdens placed upon the City and benefits derived by the Company by reason of being located immediately adjacent to said City. WHEREAS, the Company and the City desire to base the industrial district payment on assessed value to ensure equity among the companies. In view of the above and foregoing reasons, and in consideration of the mutual agreements herein contained, Company and City hereby agree as follows: WIndustrial Contracts120090upont Peformance Elastomers 2009-Final.doc I ARTICLE I COMPANY'S OBLIGATION Annual Payment on Company's Property 1. Commencing with the calendar year 2009 and each calendar year thereafter for the duration of this Contract, the Company will pay the City a certain sum which will be computed on the assessed value of the Company's facilities and property, real, personal, and mixed located on Company's land covered by this contract. (Herein "the properties") 2. By the term "Assessed Value" is meant the 100% valuation of the Company's, properties, as determined by the Jefferson County Appraisal District for the previous tax year. 3. The term "assumed City taxes due" shall be calculated by the following formula: Assumed City Taxes Due: Assessed Value/ 100 X Current City Tax Rate=Assumed City Tax Due 4. Payment Procedures The procedures for determining and making such payments shall be as follows: (a) The payment for 2009 shall be due and payable on or before February 1, 2009, and calculated as follows: SAAGENDAIAGENDA ITEM MEMOSOupont Peformance Elastomers 2009.doc 2 Assumed City Taxes Due: Assessed Va7/ 100 Current City Tax Rate= Assumed City Taxes Due = 80%of Assumed City Taxes Due Each October thereafter, the Chief Financial Officer shall obtain the most recent assessed values as set by the Jefferson County Appraisal District for the Company's properties, real, personal and mixed, having taxable situs within the areas described in this agreement; for example, in October. 2008, the 2008 assessed values shall be used for the February 1, 2009 .ne assessed values for the period required are in question and/or under litigation ith 0 TPffPrson. County Appraisal District, payment shall be computed on the most recent the Jefferson County Appraisal District. The Company shall notify the City following resolution of the appraised value question and an adjustment for the payment, without i, ,t,will be made within thirty (30) days following such resolution. (b) After the assessed value of the Company's properties has been determined, the payments due hereunder shall be calculated in accordance with the following schedule: The 2010 and 2011 payments shall be 80% of assumed City taxes due. The 2012 -2015 payments shall be 75% of assumed City taxes. (c) City hereby agrees to bill Company for its payments due hereunder on or before January 1 each year. Company shall pay to City the amount billed on or before February 1 each SIAGENDAIAGENDA ITEM MEMOSOupont Peformance Elastomers 2009.doc 3 year. Upon receiving the final payment, the Finance Officer shall issue an official receipt of said City acknowledging full, timely, final and complete payment due by said Company to City for the property involved in this Agreement for the year in which such payment is made. If payment is not made on or before any due date, the same penalties, interest, attorneys' fees and costs of collection shall be recoverable by the City as would be collectible in the case of delinquent ad valorem taxes. Further, if payment is not received within 30 days of the due date, all payments which otherwise would have been paid to the City had Company been in the City limits of City will be recaptured for the year in which the payment was not timely made and paid to the City within 30 days of any such event after notice by the City as set out herein that the payment is delinquent. ARTICLE II PROPERTY COVERED BY AGREEMENT This instrument will reflect the intention of the parties hereto that this instrument shall govern and affect the properties of Company (facilities, real, personal, and mixed) located on Company's real property as shown on the records of the Jefferson County Appraisal District, which are within the extra-territorial jurisdiction of the City of Beaumont. S WGENDAWGENDA ITEM MEMOSOupont Peformance Elastomers 2009.doc 4 ARTICLE III SALE BY COMPANY Company shall notify City of any sale of any or all of Company's facilities to any person or entity. It is the intent of the parties that no sale of any of Company's facilities will affect the amount to be paid to the City as provided under this Agreement. Accordingly and as to payments due under this contract no such sale shall reduce the amount due the City under this contract until the purchaser of such facility has entered into a contract in lieu of taxes with the City that provides for a continuation of like payments to the City. ARTICLE IV CITY'S OBLIGATIONS 1. City agrees that it will not annex, attempt to annex or in any way cause or permit to be annexed any portion of lands or facilities or properties of said Company covered by this Agreement for the period of the agreement except as follows: (a) If the City determines that annexation of all or any part of the properties covered by this Agreement belonging to said Company is reasonably necessary to promote and protect the general health, safety and welfare of persons residing within or adjacent to the City, the City will notify Company in accordance with State law of the proposed annexation. In the event of such annexation, Company will not be required to make further payment under this Agreement for any calendar year commencing after such annexation with respect to the property so annexed, but shall nevertheless be obligated to make full payment for the year during which such annexation become effective if the annexation becomes effective after January 1 st of said year. SAAGENDA\AGENDA ITEM MEMOSOu P ont I'dormance Elastomers 2009.doc 5 (b) In the event any municipality other than the City attempts to annex separately or in the event the creation of any new municipality shall be attempted so as to include within its limits any land which is the subject matter of this Agreement, City shall seek immediate legal relief against any such attempted annexation or incorporation and shall take such other legal steps as may be necessary or advisable under the circumstances with all cost of such action being borne by the City. i 2. The City further agrees that during the term of this Agreement, there shall not be extended or enforced as to any land and property of Company within said City of Beaumont III Industrial District, any rules, regulations, or any other actions: (a) seeking in any way to control the platting and subdivisions of land, (b) prescribing any buildings, electrical, plumbing or inspection standards or equipment, or (c) attempting to regulate or control in any way the conduct i of Company's activities, facilities or personnel thereof. 3. It is understood and agreed that during the term of this agreement or any renewals i thereof, the City shall not be required to furnish any municipal services to Company's property located within the City of Beaumont Industrial District; provided, however, City agrees to furnish fire protection to Company should such protection be requested by Company in the event an unusual emergency situation occurs. The City will also provide police protection if called upon by the Jefferson County Sheriff's Department for assistance. SAAGENDAWGENDA ITEM MEMOSOupont Peformance Elastomers 2009.doc 6 ARTICLE V TERMINATION OF BREACH It is agreed by the parties to this Agreement that only full, complete and faithful performance of the terms hereof shall satisfy the rights and obligations assumed by the parties and that, therefore, in addition to any action at law for damages which either party may have, Company shall be entitled to enjoin the enactment or enforcement of any ordinance or charter amendment in violation of, or in conflict with,the terms of this Agreement and shall be entitled to obtain such other equitable relief, including specific performance of the Agreement, as is necessary to enforce its rights. It is further agreed that should this Agreement be breached by Company, the City shall be entitled, in addition to any action at law for damages, to obtain specific performance of this Agreement and such other equitable relief necessary to enforce its rights. ARTICLE VI AFFILIATES The benefits accruing to Company under this Agreement shall also extend to Company's "affiliates" and to any properties owned or acquired by said affiliates within the area owned by Company, and where reference is made herein to land, property and improvements owned by Company, that shall also include land, property and improvements owned by its affiliates. The word "affiliates" as used herein shall mean all companies with respect to which Company directly or indirectly, through one or more intermediaries at the time in question, owns or has the power to exercise the control over fifty percent (50%) or more of the stock having the right to vote for the election of directors. SAAGENDA\AGENDA ITEM MEMOS\Dupont Peformance Elastomers 2009.doc 7 L ARTICLE VII TERM OF AGREEMENT The term of this Agreement shall be for seven(7)years,commencing January 1, 2009,and ending on December 31, 2015. ARTICLE VIII NOTICES Any notice provided for in this Contract, or which may otherwise be required by law shall be given in writing to the parties hereto by Certified Mail addressed as follows: TO CITY TO COMPANY City Manager DuPont Performance Elastomers, L.L.C. City of Beaumont Property Tax, Suite 135 801 Main 140 Cypress Station Drive P. O. Box 3827 Houston,Texas 77090 Beaumont, Texas 77704 ARTICLE IX CONTINUATION If this Agreement shall be held invalid by any court of competent jurisdiction, such holding shall not affect the right of City to any payment made or accruing to City hereunder prior to such adjudication, and this provision is intended to be an independent and separable provision not to be affected by such adjudication. S:WGENDAIAGENDA ITEM MEMOSOupont Peformance Elastomers 2009.doc 8 IN WITNESS THEREOF,this Agreement, consisting of 9 pages, is executed in �t duplicate counterparts as of this /S " day of JCCIft see , 2008. CITY OF BEAUMONT, TEXAS By: Kyle Hayes City Manager ATTEST: Tina Broussard City Clerk �IWOAjp ��It DUPONT PERFORMANCE �� �•c1', ELASTOMERS, L.L.C. � U '� � / 1 w zr By. - SAAGENDAIAGF.NDA ITEM MEMOSOupont Peformance Elastomers 2009.doc 9